- The ECJ has ruled that workers placed on garden leave are not entitled under EU law to pay in lieu of unused holiday they could have taken during the garden leave period (unless they were unable to take it due to sickness). Under UK law, it has always been possible (and remains advisable) to expressly provide in the contract that accrued holiday is to be taken during garden leave, or for the employer to give requisite notice to the employee to take it, but this decision suggests that the employer may simply have a right to count garden leave towards outstanding leave entitlement when terminating the employment, without more. (Maschek v Magistratsdirektion der Stadt Wien)
- The ECJ has also suggested that leave which is not described as annual leave but nevertheless is for rest and recuperation (eg, sabbaticals for no stated purpose) can count as statutory holiday, potentially preventing an employee from taking further holiday in the relevant year; leave which is not for this purpose (perhaps, sabbaticals to carry out work-related research) will not count and employees must be permitted statutory holiday in addition. Employers would be well advised to expressly agree the effect of an individual's sabbatical on holiday entitlement in advance. (Sobczyszyn v Skola Podstawawa w Rzeplinie)
- There has been another first instance tribunal ruling that voluntary overtime payments made once a month for many years were sufficiently regular to constitute "normal pay" and therefore had to be reflected in holiday pay for the EU-derived 4 weeks' statutory holiday entitlement. The tribunal also considered that the default position was that an employee should be treated as taking his statutory 4 week entitlement first in the holiday year (which will affect the time limits for bringing claims). (Brettle v Dudley Metropolitan Borough Council)
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.